P. v. Fortenberry

Filed 5/18/06  P. v. Fortenberry CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment (order granting probation) of the Superior Court of Los Angeles County, Karen Nudell, Judge.  Affirmed.

            Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

            Nelson Fortenberry appeals from the judgment entered following his plea of no contest to corporal injury upon a spouse (Pen. Code, §  273.5, subd. (a)).  The court suspended imposition of sentence and ordered appellant placed on formal probation for three years.

In this case, we reject appellant's contention that a probation condition requiring that appellant have no contact with his wife is unconstitutionally overbroad.  Fairly read, the record reflects that the probation condition, part of a protective order authorized by Penal Code section 1203.097, subdivision (b), required that appellant not have contact, or associate, with his wife absent an order by the family court.  Since the present conviction was appellant's second conviction for a domestic violence offense against his wife, and appellant had failed to complete previous court-ordered domestic violence counseling classes, the state's compelling interest in protecting domestic violence victims justified the restriction on appellant's constitutional rights to association and marital privacy. 

Nor did the trial court err by later failing to modify or strike the probation condition, since the circumstances justifying imposition of the probation condition justified said failure.  Moreover, although appellant claims his wife asked the court to strike the condition so she could contact him, the record is ambiguous on the issue.  However, the record does reflect appellant's wife wanted the condition stricken so her children could contact appellant, but appellant does not challenge the probation condition prohibiting him from contacting his children absent a family court order.

FACTUAL SUMMARY

            The record reflects that on July 27, 2005, appellant committed the above offense against A.A., his wife, in Los Angeles County.

CONTENTION

            Appellant contends that the probation condition that he have no contact with his wife is unconstitutionally overbroad.

DISCUSSION

The Probation Condition Was Constitutional.

            1.  Pertinent Facts.

A complaint alleged as counts 1 and 2 that appellant committed criminal threats (Pen. Code, §  422) on or about July 27, 2005, and August 24, 2005, respectively, and as count 3 that appellant disobeyed a domestic relations court order (Pen. Code, §  273.6, subd. (a)) on or about August 24, 2005.  Counts 1 and 2 each alleged A.A. as the victim.  On September 8, 2005, the court amended the complaint to allege as count 4 that appellant committed corporal injury upon a spouse (Pen. Code, §  273.5, subd. (a)), and appellant pled no contest to that charge. 

A probation report prepared for a September 28, 2005 hearing reflects as follows.  On July 27, 2005, Los Angeles police officers went to Van Nuys High School due to a report of a violation of a domestic violence restraining order.  Once officers arrived, A.A. told them that appellant, her estranged husband, forced his way into her vehicle and drove around town stating he was going to kill her if she was going to leave him.  A.A. also told police that appellant approached her and her eldest son while they were sitting in her vehicle, appellant forced his way into the vehicle, and he drove around town at a high rate of speed, threatening her life.  When A.A. attempted to call for help on her cell phone, appellant threw it out the window.  Finally, A.A. and her eldest son convinced appellant to drop her son off at Van Nuys High School.  Once there, A.A. fled and contacted police, who arrived shortly thereafter. 

The report also reflects the following.  A.A. and appellant had been married ten years and had three children.  During the past year, A.A. and appellant had been separated.  A.A. told police that there had been a history of domestic violence throughout the relationship, and appellant was currently on summary probation following a conviction for domestic violence.

The report reflects that in 1992, appellant suffered a conviction for possessing marijuana for sale and the court sentenced him to prison.  In April 2003, he was arrested for spousal abuse in violation of Penal Code section 273.5, subdivision (a), but convicted of spousal battery (Pen. Code, §  243, subdivision (e)(1)) and placed on probation for three years. 

The probation officer stated in the report that, according to appellant, there were â€